Defending Free Speech Q&A

Ruth Bourquin is senior and managing attorney at the ACLU of Massachusetts, where she specializes in free speech issues.

In 2021, the ACLU of Massachusetts secured a legal victory related to the right to display political signs. What was the issue in that case?

A Massachusetts court ruled that restrictions imposed by a condo association on homeowners displaying signs on or near their own units were unreasonable. This applied specifically to a person who wanted to post a Black Lives Matter sign in her garden bed. From Holyoke to Plymouth, the ACLU of Massachusetts has successfully challenged unconstitutional local ordinances prohibiting or limiting political signs. But this case is significant because it suggests that the Massachusetts Constitution’s free speech guarantee, unlike the First Amendment, prevents restrictions by private—not just public—actors.

Are lawsuits the only way that the ACLU can help resolve these cases?

Not necessarily. We commonly resolve free speech issues by negotiating without going to court. Last year, we resolved a dispute with an Amherst condo association without having to sue, and we also recently resolved a matter involving unconstitutional restrictions imposed on street performers by the City of Salem.

Broadly speaking, what were some of the biggest developments related to free speech in Massachusetts in 2021?

The U.S. Supreme Court is poised to decide a case involving the intersection of free speech and exercise of religion. The case arose from Boston’s policy of opening a City Hall flagpole to use by private parties but denying that right to a religious group. The ACLU brief in the Supreme Court argues that, although Boston’s concerns about flying religious symbols at City Hall are understandable, opening the flagpole to private parties but then excluding this group because of the viewpoint of its message violates the First Amendment.

The ACLU had a big win in a free speech case at the Supreme Court in 2021. Can you tell us why that case was so important?

The case was significant because it reaffirmed that high school students have free speech rights with regard to off-campus comments that do not cause disruption or invade others’ rights at school. If the case had gone the other way, it would have conferred excessive power on schools to curtail student speech, including speech criticizing school officials and government actors, which is essential to our democracy.

What do you anticipate will be the next “big fight” in the field of free speech law?

There are big issues looming with regard to restrictions on what subjects can be taught—and what information students have a right to receive—about the troubled racial history of this country, often framed as a debate over “critical race theory.” Fortunately, in Massachusetts this year, the state attorney general agreed with an ACLU brief that a proposed ballot question restricting the teaching of anything that makes certain groups feel guilty or uncomfortable violated free speech, so we have a good foundation for challenging such restrictions here.

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